The New Republic

Like most things, empathy can and will be shaped and molded into practically anything we need it to be.

As a concept it was invented to express the evolutionary capacity of men and women to feel connected to each other. And, as such, it has more to do with emotional and psychological bonding than something we can pin down and explain or encompass here.

For example, there are people today who empathize more with the Israelis and people who empathize more with the Palestinians. No one can establish who we ought to empathize with. Or how much our empathy should be distributed along an alleged moral and political continuum. All they can do is point out that, for whatever reason, we all have evolved the capacity to feel empathy. Beyond that empathy plays out in a zero sum world.

In my view, the most dangerous rendition of empathy is still the one that refuses to acknowledge the implications of this. Instead, we remain judged by all too many based wholely [solely] on who or what we choose to empathize with. Few therefore explore in depth the manner in which what we have come to empathize with is often interchangeable with many other things we might have chosen instead had our historical and cultural and experiential circumstances been different. Empathy is the ever present vessel. What we put in it cannot be reduced down to Good empathy, Bad empathy, Right empathy, Wrong empathy

In this respect it is no different from many other things we feel like love, hate, fear, anxiety, hope. We know what these things are....But not really. They become enmeshed in ceaselessly conflicting circumstantial contexts. In the end, they are far beyond anyone's capacity to pin down. Either with the tools of induction or deduction.

Just:

One of the primary roles of the constitution is to hedge against the possibility of majoritarian tyranny by protecting the rights of unpopular groups. This is not a matter of sentiment or good will; it is a fundamental matter of morality and the underpinning of a free, liberal order.

george:

This is self-referrential argument. A tautology. A bunch words defining and defending other words. How in particular does this inform the debate if we cannot pin down the essential, universal meaning of words like "majoritarian tyranny" , "fundamental matter of morality", or a "free, liberal order".

What in the world ARE they?

Who gets to say what these things means?  In what particular context? In what particular way? For what particular reason? Instead, if history has taught us anything at all it is that those who claim to own and operate words like this will, sooner or later, get their hands on guns and bombs and armies; and and lots and lots of money. The rest as they say is history. Literally.

Just ask yourself this: Does Obama and Geithner empathize more with the folks on Wall Street or the folks on Main Street? Is there a calculation we can derive to determine the extent to which their policies do or do not reflect an empathy more in tune with "majoritarian tyranny" , "fundamental matter of morality", or a "free, liberal order".

Indeed, you can readily point out how their economic policy to date has clearly been in the best interest of that small minority of very rich and very powerful people who broke the system but still the shots along that well worn corridor between Washington and New York.

The True Meaning of empathy? Please. Empathy fleshed out and attached to actual human interaction is an existential contraption down to the bone. Think for example of the abortion conflagration. Does it not revolve precisely around the extent to which one is said to empathize more with the fetus more or less than the pregnant woman? Is there a way in which John Kyl or Lindsay Graham or Russ Feingold or Sonia Sotomayor can parse this in order to divine where True Empathy starts and stops here?

Not in amillion years.

george walton.

- iambiguous

July 15, 2009 at 3:55am

Empathy, sympathy, why not ask the confused committee members (or confused TNR readers) if they can tell us the difference in meanings of these two words.  GWB's administration perfected the art(?) of using words to mislead (remember "clear skies").  Now the (mostly) Republican committee members are perfecting the art(?) of misusing words to mislead.  Any effective lawyer will tell you that empathy is an essential skill, for it allows the lawyer to see the world from the eyes of his/her adversary.  Without empathy, words merely create vibrations in the air; with empathy, words can be used to penetrate both the mind and the heart.

- raylward

July 15, 2009 at 7:27am

I am soooooo pleased that the focus of national attention this week is on Justice to be Sotomayor, not that ex-governor of Alaska or the recently expired pop star.

- frilz1

July 15, 2009 at 11:17am

I am soooooo pleased that the focus of national attention this week is on Justice to be Sotomayor, not that ex-governor of Alaska or the recently expired pop star.

- frilz1

July 15, 2009 at 11:17am

great post, I was struck by the same thing when Graham went on about women in the middle east, and at another point about originalism (which he seems to be in favor of). So Graham wants women to be lawyers and judges in the Middle East, but only effectively to hold up their laws. There is nothing in the Constitution that prevents laws being passed to force women to wear burqas in the US (as in centuries past women had to dress very modestly or be convicted of public indecency), and if such a law were passed, Graham would want her to uphold that law, but he thinks it is a good idea to have women to uphold that law because...? Beats me, I assume from his mentioning it is that he wants women in such positions of power to strike down such restrictions, but really, I have no idea. It is a shame Sotomayor could not have destroyed him with his illogic.

Nothing crystallizes the whole empathy debate for me as the recent 8-1 ruling against strip searching children in schools. The harm was viewed as being greater than the good, with the harm being the psychological state of the children involved taking precedent over the danger of the potential of a student having an over the counter pain reliever. Of course that decision was decided by empathy. And I also honestly expect women would get that harm more readily than men do.  One of the most common phrases in English is "I don't understand women" expressed by nearly every guy. And I am sure women have some phrase to express how little men understand, so I can state that when it comes to cases such as this one, that I would hope a woman would arrive at a better decision, and perhaps instruct the men on the court in the process.

Yes, the fact that it was an 8-1 decision shows that men can come up with as good a decision so in this case I am happy that Judge Sotomayor was proven wrong.

- blackton

July 15, 2009 at 11:26am

Oh for goodness sakes. When we discuss "empathy" we are talking about -- or should be talking about -- moral imagination. The human ability to imagine consequences for others. Those without empathy have no moral compass. Without empathy, you are a sociopath.

Somehow, in our culture "empathy" has, intentionally I think, been increasingly relegated to the realm of "the feminine" ("touchy feely").  Something to be disdained as weakness that interferes with tough minded, self interested action.  As our politics has become more defensively and (absurdly, stereotypically) macho, the notion of even considering the moral consequences of governing policies (especially their impact on the least powerful and most vulnerable), of our individual actions (especially individual financial decisions), or the actions of entities like corporations -- how they will bear on and impact anyone other than ourselves --  has been increasingly seen as something to be disdained and discouraged.

As a culture, especially among the financial elite, we are increasingly embracing the values of the sociopath. And it is making us, as a nation, weaker, not stronger.

- esmense

July 15, 2009 at 12:01pm

What esmense said.

- ironyroad

July 15, 2009 at 1:03pm

...Oh for goodness sakes. When we discuss "empathy" we are talking about -- or should be talking about -- moral imagination. The human ability to imagine consequences for others. Those without empathy have no moral compass. Without empathy, you are a sociopath....

Shouldn't we be distinguishing between sympathy and empathy, the former meaning feeling sorry for what has befallen another, twhile keeping oine's self in tact, he latter meaning entering the soul of another, so to speak, making an identificatory match so one can feel what the other feels, experience what the other experiences? So the refinement , and literal definition, would be  "Without (sym)pathy, you are a sociopath."

That latter--entering the soul of another--is argued to be necessary to catharsis as a proper effect of tragic drama. It is an elusive quality more metaphor for  I'd argue reified states of emotion that probably don't exist. Surely it has nothing to do with judging.

It was interesting to see Sotomayor walk back from Obama's lauding of empathy in contrasting empathy/sympathy with what legal rules require in her highly politically correct answers during these hearings. But she is given cariciatured answers to illuminate that distinction: limitation periods prohibiting highly affecting claims. That stark and easy example does not beging to untangle the difficulties the issue of how sympathies and feelings and biases and predilections and ideology and personal values and philolsophy affect decision making in hard cases.

You would not from these hearings  knowthat the issue even exists so often is the bromide that law itself commands results. One need only look at the split in supreme court votes with Kennedy swinging as he ses fit.

Sotomayor is impressive as these hearings go: my criteria for judgment being the considerable ability of staying safe, answering politically correctly, uttering and repeating bromides, not getting trapped

and knowing her standard answer brief and what is the appropriate standard answer to trout out given the question. My guess is that Harrier Miers could ot have met these criteria.

Bork had the temerity to say what he truly thought and (probably approriately) got Borked in the result.

So the process has since then become anodyne when not politically (as opposed to legally) sensational--Clarence Thomas.

The chances of Sotomayor breaking out of the liberal 4 lock step on the court in my view are highly unlikely.

- basman

July 15, 2009 at 4:07pm

basman --

For the sociopath other people and their concerns are not real. The sociopath doesn't lack emotion, he lacks the ability to understand, experience and see other people as more than objects (objects that may further or thwart his own interests).

I can't help but wonder why so many find it so important to deride and dismiss an important concept, such as empathy, that bears so much moral significance. Is it because they seek to escape from the moral responsibilities implied in that concept? Or that they are simply incapable of grasping them? Empathy is an act of intellect and imagination. Which is why it is likely to be best informed by experience. It is, of course, easier to fully imagine the consequences for others, including the emotional consequences (good or bad), of one's own or another's actions, if you have experienced such consequences yourself or seen those consequences played out in your own milieu. The broader one's experience of the world and life in general (and the brighter you are), the more broadly empathetic you are like to be. Empathy may lead you to feel sympathy for another (or to rejoice for another) but what makes it so important an attribute  -- for the welfare of individuals and societies -- isn't the emotions it invokes but the understanding and recognition it requires. Empathy isn't about abandoning intellect (and yourself to emotion)  -- as so many seem to want to insist -- it is an act of intellect.

- esmense

July 15, 2009 at 5:45pm

emense

What I think, I think, is that, as noted, sympathy has concrete meaning corresponding to real emotions and real feelings existing in the real world. Empathy corresponds to nothing real and is a fancy way of talking about very strong feelings of identification with the feelings and experiences of another. The reality of the self and the nature of consciousness, I'd argue, make what is defined as empathy, and what as I understand it to mean, correspond to nothing that exists in reality.

Short version: there is no such thing as empathy.

That's my thesis. I'd be happy to be presuaded otherwise.

- basman

July 15, 2009 at 6:27pm

For example: (from something online):

empathy: The ability to *co-experience and relate to* the thoughts, emotions, or experience of another without them being communicated directly by the individual .

sympathy: The ability to understand and support to the emotional situation or experience of another being with compassion and sensitivity.

It's the differences along these lines that i am trying to argue for.

- basman

July 15, 2009 at 10:03pm

Some final for now ruminating.

… Sympathy is a narrow personal emotion; empathy is a principled tool for analyzing the world around us. …

I started wondering whether in my posts I was being overly semantic till I reread Just and came back to the distinction he himself draws. The distinction he draws turns on putting one’s self in another’s shoes, feel what it’s like to be another, as against having some feelings of sadness for another’s plight. I find this distinction much too watertight and too diminishing of sympathy. What are the springs for this disparaged “narrow personal emotion” but having some felt sense of another’s travail? After all it is common and ancient to speak of “tears of sympathy”: www.gracegems.org/.../p13.htm.

In these terms, it is not, I don’t think, for judges to put themselves, or to try to put themselves, in another’s shoes. For they embark on such an exercise at the peril of the loss of their dispassionate, detached, disinterested judicial selves. It is complicated enough that judges necessarily in hard cases, where the law is indeterminate in compelling a result, will cleave to their biases, predilections, values, ideologies, views of the world without that under the pretext of “empathy” as “a principled tool for analyzing the world around us”, whatever that inexact phrase might exactly mean as applied to legal reasoning.

Thus while Just speaks of the mandate of your Constitution “…to hedge against the possibility of majoritarian tyranny by protecting the rights of unpopular groups. This is not a matter of sentiment or good will; it is a fundamental matter of morality and the underpinning of a free, liberal order. We insist on these rights for others largely because of the human capacity to put ourselves in someone else's shoes--to imagine what it would be like if the natural lottery had placed us in circumstances different from our own. Without empathy, neither our constitution nor the body of legal interpretation that has sprung up around it over the past two centuries could possibly exist in anything like its present form.”

But this speaks to a problem: that in hard cases, the kind of cases that generally reach your Supreme Court, often reasonable claims of “right against right” are what are pitted against each other. Neither right nor left have a monopoly on sympathy or morality. See Ricci as a recent  case in point.

As for sympathy itself, a judge would have to be relatively inhuman to be unconcerned with how people are affected by his or her decisions, and , as I say, I don't think liberals have any greater purchase on such concerns than do conservatives, though both will filter their concerns through how they see the world. Between Scalia's originalism, which doesn't make much sense to me, and Breyer's active liberty with its manifold enumerated criteria for legal analysis, which does make some sense to me, there is tremendous latitude for ideological preference all across the political spectrum in hard cases.

How sympathy affects analysis is elusive and a lot of distinctions have to be made in assessing that—the relation between sympathy and decision making. For example what is the relation, if any, between the sympathy/empathy  Obama is calling for and the concerns with the effects of legislation? I’d argue that there need be no relation, but again one’s sympathies will proceed from how one views the world, one’s values and what one takes to be important. So finally I wonder whether all the talk about sympathy or empathy amounts to nothing much at all since judges aren’t sociopaths and all are affective beings. So then I wonder whether sympathy is loaded code for having the sympathies that are politically congenial Obama rather than a discrete virtue as such that he is looking for in judges.

Take Roe v Wade for example. It is not an example of sympathy as such; some will privilege women’s autonomy and concerns peculiar to women; others will privilege the fetus as life. So everyone is sympathetic and that’s a truism and the package of sympathies will conform to how the sympathizer is constituted. So looking for sympathy/empathy in judges is ultimately, I’d argue, a hollow virtue which sounds impressive and telling but is not and may be disingenuous in providing cover for the right kind of sympathies without acknowledging that.

- basman

July 15, 2009 at 10:56pm

The DSM-IV (one of my favorite books) backs up emense:  "Indviduals with Antisocial Personality Disorder frequently lack empathy and tend to be callous, cynical, and contemptuous of the feelings, rights, and sufferings of others....  Lack of empathy, inflated self-appraisal, and superficial charm are features that have been commonly included in traditional conceptions of psychopathy that may be particularly distinguishing of the disorder ...."  Antisocial Personality Disorder (commonly known as psychopathy or sociopathy) is coded 301.7, if you want to look it up on psychiatryonline.com (the online DSM).  The "essential feature" of the disorder is "a pervasive pattern of disregard for, and violation of, the rights of others that begins in childhood or early adolescence and continues into adulthood."  It is estimated that 3% of males, and 1% of females have it.  I don't know whether those percentages would increase if the sample group consisted of only politicians.

Empathy means identification with the feelings of others -- basic golden rule sort of stuff and not very magical.  Sympathy means either pity or the coincidence of feelings or attitudes -- commonality (as in, I am sympathetic to your opinions, or certain musical tones are sympathetic, or sympathetic crying, as children exhibit, or sympathetic yawning, as everyone exhibits).  Pity suggests empathy, but it is but one sort.  (One can identify with someone else without feeling sorry for them.)  The other meanings of sympathy suggest a natural shared connection that does not quite rise to the level of empathy.  In Freudian terms, sympathy is consistent with egotistical behavior.  Empathy requires the superego -- the internalization of social norms of morality that keep that nasty ego at bay.  One can quarrel with these conceptualizations, but it strikes me as a useful distinction.  Normal people exhibit a capacity not necessarily to grandly "enter the soul" of someone else but to at least, as emense says, imagine being in someone else's shoes and behave accordingly.  If you take a broad view of the word "pity," then, sure, the distinction evaporates.  But "empathy" still seems like a good word to have around.  It packs a principled punch that "sympathy" doesn't quite capture.

- jhildner

July 15, 2009 at 11:52pm

The ridiculous attack on empathy--from left, right, and unfortunately at times from Judge

Sotomayor herself--and the equally ridiculous insistence that Supreme Court justices are

bound to "follow the law" (what law?) have made these hearings even more farcical than

Roberts' and Alito's.  If a nominee's worldview and human understanding are irrelevant,

and if all he or she has to do is "folllow the law," well, hell, what are we so worried about--

let's just approve somebody and get on with it.  At least today (Wednesday) went

a little better since the judge was able to relax, fight back in a noncombative way, and show

the world why some of us are expecting so much from her.  As she demonstrated 14 years ago

when she saved baseball, she really has a very good idea what it is all about and combines knowledge of "the law" with the determination and ability to ensure that justice is done.

- mlottman

July 16, 2009 at 12:11am

I've always understood the distinction between empathy and sympathy to be the difference between understanding of another's state of mind on the one side and, on the other, the expression of fellow-feeling and support for another's position or misfortune or other concrete circumstance, whether emotional or physical or whatever.

Hence, my empathetic capacity such as it is -- sorely tried by basman (just joking!) -- enables me to understand how Sarah Palin fans experience her affirmation of their feelings of frustration and exclusion and to realize that it's very human to have those feelings.  But I have no sympathy for them, because I don't view the world in the same way and I don't believe they are people who have any real basis for their resentments.

In that context, it's instructive that the comment in the Ricci case went beyond empathy.  Sotomayor's panel said that they (Ricci and co-plaintiffs) were sympathetic litigants.  That is, they were good people, deserving of fellow feeling and support -- but this was a court and they didn't have the law on their side.

- ironyroad

July 16, 2009 at 2:15am

I'm on the verge of being persuaded that I'm wrong about sympathy empathy.

I'm just gonna' give the distinction a bit more thought and consult perhaps with the common language philosophy gods.

- basman

July 16, 2009 at 9:23am

Empathy is defined as the action of understanding, being aware of, being sensitive to, and vicariously experiencing the feelings, thoughts, and experience of another of either the past or present without having the feelings, thoughts, and experience fully communicated in an objectively explicit manner ; also : the capacity for this

Sympathy is defined as 1 a: an affinity, association, or relationship between persons or things wherein whatever affects one similarly affects the other b: mutual or parallel susceptibility or a condition brought about by it c: unity or harmony in action or effect <every part is in complete sympathy with the scheme as a whole — Edwin Benson>2 a: inclination to think or feel alike : emotional or intellectual accord <in sympathy with their goals> b: feeling of loyalty : tendency to favor or support <republican sympathies>3 a: the act or capacity of entering into or sharing the feelings or interests of another b: the feeling or mental state brought about by such sensitivity <have sympathy for the poor>4: the correlation existing between bodies capable of communicating their vibrational energy to one another through some medium.

At a minimum, these meanings overlap a lot.

I have always, mistakenly backwards it now seems, taken empathy to mean the loss of, or surpassing, the barrier between self and other while what appears to distinguish it from sympathy is maintaining one’s self while experiencing or feeling what another experiences or feels. The quoted definitional meanings of sympathy suggest what I have been imparting to the meaning of empathy: a mutuality of feeling where, without empathy’s critical distance or detachment, there is emotional correspondence.

In these terms, is Irony’s distinction--  understanding of another's state of mind—may be too stinting. My sense is that we cannot empathize with what we cannot sympathize with. If I can understand or imagine what might drive a sadistic killer or anyone malevolent to act as she does, understand her state of mind, am I empathizing with her or simply understanding or imagining her? So I want to suggest that empathy necessarily harbors sympathy within its meaning.

One last small point: it seems wrong to say when someone else is happy or having a positive experience that one empathizes with her. So empathy, and sympathy in its strong sense—more than just commonality—at least, seem grounded in the affliction of the other.

- basman

July 16, 2009 at 11:17am

p.s. Here is someone else has nicely put all this:

"...Sympathy implies feeling shared with the sufferer as if the pain belonged to both persons: We sympathize with other human beings when we share and suffer with them. It would stand to reason, therefore, that completely shared suffering can never exist between physician and patient; otherwise, the physician would share the patient's plight and would therefore be unable to help.

Empathy is concerned with a much higher order of human relationship and understanding: engaged detachment. In empathy, we "borrow" another's feelings to observe, feel, and understand them--but not to take them onto ourselves. By being a participant-observer, we come to understand how the other person feels. An empathetic observer enters into the equation and then is removed.

Harry Wilmer summarizes these three emotions--Empathy, Sympathy, and Pity--as follows:

- Pity describes a relationship which separates physician and patient. Pity is often condescending and may entail feelings of contempt and rejection.

- Sympathy is when the physician experiences feelings as if he or she were the sufferer. Sympathy is thus shared suffering.

- Empathy is the feeling relationship in which the physician understands the patient's plight as if the physician were the patient. The physician identifies with the patient and at the same time maintains a distance. Empathetic communication enhances the therapeutic effectiveness of the clinician-patient relationship.

- basman

July 16, 2009 at 11:30am

basman, interesting.  So, can one empathize without sympathizing, as irony suggests?  I just saw a wonderful play called Blackbird about a woman who confronts a man with whom she had had an affair many years earlier -- when he was 40 and she was 12.  The man, because of the relationship, went to prison, and is now out with a new name working in a nondescript office.  The girl, now in her 20s, drops by, and hilarity ensues.  Just kidding.  Empathy ensues.  We come to "understand" both characters in the way the psychiatrist describes.  But do we feel sympathy for them?  The girl is an easier case at the outset, of course, and perhaps we do maintain our "affinity" with her throughout.  But, importantly, as the play goes on, she increasingly doesn't act and speak in the way we might want her to -- as a victim spouting back to us conventional attitudes about what's horribly wrong and damaging about the whole business.  Meanwhile, it's probably not right to say that we "sympathize" with the man (who was played wonderfully in this production by CSI star William Petersen).  Our sympathies are helped by the fact that the man doesn't appear to be a genuine pedophile.  But, of course, we view his transgression as pretty bad, and it inspires in us, when we think about it, feelings not of affinity but of disgust.  Good plays and literature can help us get past that, as the psychiatrist must, to *understand* the characters in a deep way, which, to me, suggests empathy and not neceessarily sympathy.  Or does it?  In think the French say that to understand is to forgive, which I'm not sure is right.  Is to empathize to sympathize?  I don't know.  There seems room to say, "I understand him, but I don't like him."

- jhildner

July 16, 2009 at 12:44pm

A statement from a friend of mine, a retired English professor which says what I used to think, about 7 posts ago:

"...Am I empathetic when I can feel an anti-semite's hatred of Jews?  I think I very well know what it feels like to hate Jews, since I have felt such revulsion from people myself.  I kow why they would want to blot me out.    I also, teaching Paradise Lost, sound like a Christian, have been accused of trying to convert students and know just how Christians feel about sin.  And on and on.  The empathy business is a modern conceit that has to do with being nice, and is bullshit. 'I know just how awful you feel, and I think it is stupid and self-indulgent, and you should stop it.  Fuck your tears.' is a perfectly sensible statement.  Curb Your Enthusiasm is a good antidote to this fashionable sentimentality..."

- basman

July 16, 2009 at 2:35pm

I have thought a bit more about whether empathy must contain sympathy. The argument that it does may turn on the notion of identification, a necessary condition for empathy. We can't identify with, I'd suggest, what is anathema, or even less, to us, though we may well understand it.

- basman

July 16, 2009 at 2:38pm

Now I'm starting to confuse myself.

I want to step back from my suggestion that what distinguishes empathy from sympathy is some detachment in the former--"engaged detachment" in a phrase from above.

It's not that I now don't think.

It's the ability, in fact, to feel and experience what another is feeling and experiencing, back to the homely shoes, to enter another's soles, with a neccesary dollop of sympathy. So it's, perhaps, in compact version, sympathetic identification with another's afflliction or if identification requires and therefore necessarily  implies sympathy as I tried to argue, it's  simply identification with another's affliction.

- basman

July 16, 2009 at 3:18pm

J.H. if you or anyone is still here, I had wanted briefly to respond specifically to your last post but got caught up in a swirl of work that made me forget everything else for a while—the oblivion produced by pain creators, very un M.J. like, I suppose. First of all, moving backwards, I don’t think that “to understand is to forgive” on a number of grounds that I can think of. To understand is to understand. Understand may yield forgiveness or it may equally yield more intransigent condemnation, depending on what gets understood. Moreover, one might forgive without understanding as in “I don’t know why you did that, but I forgive you.” On these bases, amongst others, it seems plain to me that we can understand what we don’t like and not have that understanding constitute our empathy. If we want to get away from circular arguments, empathy means x, therefore x is empathy, we need to experience the meaning of the word, let its connotations flow through our mind. So I tend to think it’s circular for the shrink above to say when he treats a patient who he understands but does not sympathize with—engaged detachment—he’s empathizing with his patient. His unexamined premise forces a particular conclusion when the issue is: what is the meaning of the concept the premise assumes a certain meaning for. From my own thinking about empathy over the past 36 hours or so, and when I let the suggestiveness of the word drift through my mind, I tend to think it’s core is sympathetic identification, which is different from, and more encompassing than, sympathy alone and is different from, and more encompassing than, understanding alone.

- basman

July 17, 2009 at 12:05pm

p.s. "hilarity ensues"

T'was funny.

- basman

July 17, 2009 at 5:57pm

Blackton, I am not so sure Sotomayor was proven wrong by the stipsearch case.  The tenor of the oral argument and some of the questions by male Justices, as well as Ginsburg's comments in a subsequent interview, suggest that without Ginsburg's voice in the decsion-making process, the case might have come the other way, or have come out the same way by a narrower margin.  

- dhurtado

July 18, 2009 at 9:48am

Basman, I am responding to your first comment on this thread without having yet read the ensuing comments, so I apologize for that.  You and I have had this discussion before.  You are no doubt correct about what "empathy" means in the context of Greek philosophy, or perhaps even in contemporary philosophy.  But that is not what Obama or anyone else means by the term when used in the context of judging.  Perhaps imprecisely, what is meant is the ability to project oneself into another person's situation so as to understand, at least at some level, how they are experiencing that situation.  In some cases, it may entail the ability to actually feel the emotion, even if not as profoundly, that another person is experiencing.  The ability to empathize if a particular circumstance is greatly enhanced if you share common life-experiences with the person with whom you are attempting to empathize.  (Is that the same thing as "sympathy"?  Perhaps, but I would think of sympathy as the ability to be moved by another person's expressions of despair or anguish, etc., whether or not you are able to empathize with that person.)

In any event, a clear example of how empathy, as I and others are using the term, can play a role in judicial decision-making is the stripsearch case.   The constitutional text does not compel a conclusion, or even provide guidance, regarding whether the stripsearch of a young teenage girl in the circumstances of the case was an "unreasonable search" under the Fourth Amendment.  The ability to appreciate how a young teenage girl would experience that situation was highly relevant to determining whether it was an unreasonable search.  Of course, 7 of the 8 justices who determined that it was an unreasonable search were men.  But I think it is quite plausible, even probable, that Justice Ginsburg, who has experienced being a teenage girl, was able to help some of the male justices come closer to being able to empathize with the young girl, or at least was able to persuade them that they should defer to her ability to empathize with the girl.

- dhurtado

July 18, 2009 at 10:34am

d hurt:

My comments on empathy and sympathy evolved over the course of this thread as is evident in my posts.

But my changed thinking does not go to what you are talking about, which we have talked about before as well.

The differences between sympathy and empathy don’t go to the nub of your post. (I noted here or somewhere else around here that Sotomayor as a matter of principled thinking or of political correctness –I don’t know which, probably the latter—walked away from Obama’s empathy in her hearing.)

I have not read the strip search case and know nothing about it save for some comments on this thread.

But it seems to me to be, as I suggested to you once before, all trite and true  that judges like every one else everyone filter the world through their own lenses glass blown by their own experiences.  So sympathetic identification is not a matter politics, it’s being human.

Here’s the position I want to stake out. Judges are better for striving to put their empathetic/sympathetic responses to the side, not totally possible to do of course, and to call cases as the law compels to the extent possible. In hard cases, where judges are in effect making choices between different but entirely arguable positions not necessarily compelled by the legal materials, they should strive to be governed by what reason best tells them and to turn the blindest eye possible to predilection. What I suggest diminishes the role something like empathy or sympathy in judging, contary to what Just above and Obama argue for.

You have reecently responded to different things I have posted. Forgive me if I have missed some of that.

- basman

July 18, 2009 at 1:55pm

d hurt:

My comments on empathy and sympathy evolved over the course of this thread as is evident in my posts.

But my changed thinking does not go to what you are talking about, which we have talked about before as well.

The differences between sympathy and empathy don’t go to the nub of your post. (I noted here or somewhere else around here that Sotomayor as a matter of principled thinking or of political correctness –I don’t know which, probably the latter—walked away from Obama’s empathy in her hearing.)

I have not read the strip search case and know nothing about it save for some comments on this thread.

But it seems to me to be, as I suggested to you once before, all trite and true  that judges like every one else everyone filter the world through their own lenses glass blown by their own experiences.  So sympathetic identification is not a matter politics, it’s being human.

Here’s the position I want to stake out. Judges are better for striving to put their empathetic/sympathetic responses to the side, not totally possible to do of course, and to call cases as the law compels to the extent possible. In hard cases, where judges are in effect making choices between different but entirely arguable positions not necessarily compelled by the legal materials, they should strive to be governed by what reason best tells them and to turn the blindest eye possible to predilection. What I suggest diminishes the role something like empathy or sympathy in judging, contary to what Just above and Obama argue for.

You have reecently responded to different things I have posted. Forgive me if I have missed some of that.

- basman

July 18, 2009 at 1:55pm

Basman, fair enough.  But I do not think it trite that judges are affected by their own life experiences because there a many judges and others who continue to deny it.  Judges cannot transcend their predilections without first being aware of them.  Moreover, I do not think that bringing one's experiences to bear in judicial decision-making is by any means always a bad thing.  Life experiences may help a judge to understand a factual situation in a way that makes them better able to apply the law to the facts.  

I refer again to the Redding case, the stripsearch case, as a good recent example.  The issue in that case was whether a stripsearch of a 13 year-old schoolgirl to see if there was Advil on her person violated the 4th Amendment's prohibition of unreasonable searches.  The text of the 4th Amendment does not provide any guidance regarding whether the stripsearch of a 13-year old girl in those circumstances is unreasonable.  So the justices clearly had to rely on other sources, including presumably their own experience, in making a decision.  At oral argument, Scalia and Breyer opined that students were required to undress for gym, and asked what was the big deal?  Ginsburg then chastised them for not understanding the deep humiliation that a 13-year old girl would experience in that situation.  The final decision was an 8-1 vote to find the stripsearch unreasonable under the 4th Amendment, with Thomas as the lone dissenter.  It appears that Ginsburg's ability to empathize/sympathize with the schoolgirl influenced the outcome of the case, at least arguably in a positive way.  

- dhurtado

July 19, 2009 at 2:35am